(PC) Smith v. Fresno County Jail

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEREK M. SMITH, Case No. 1:24-cv-00672 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, REVOKING 13 v. PLAINTIFF’S IN FORMA PAUPERIS STATUS, AND DIRECTING PLAINTIFF 14 FRESNO COUNTY JAIL, TO PAY THE FILING FEE IN FULL WITHIN 30 DAYS 15 Defendant. (Docs. 7, 8, 10) 16 17 Previously, the Court granted Derek Smith’s request to proceed in forma pauperis in this 18 action. However, upon review of Plaintiff’s litigation history, the assigned magistrate judge 19 found Plaintiff is subject to the three strikes bar of 28 U.S.C. § 1915(g), based upon four actions 20 that were dismissed prior to the filing of this matter. (Doc. 10 at 3.) The magistrate judge also 21 found that Plaintiff’s allegations “are insufficient to show that there is a real and imminent threat 22 to Plaintiff’s personal safety.” (Id. at 5.) Thus, the magistrate judge found the imminent danger 23 exception to Section 1915 does not apply. (Id.) The magistrate judge recommended the Court 24 revoke Plaintiff’s in forma pauperis status and direct Plaintiff to pay the filing fee in full. (Id.) 25 The Court served the Findings and Recommendations on Plaintiff and notified him that 26 any objections were due within 30 days. (Doc. 10 at 5.) The Court advised Plaintiff that the 27 “failure to file objections within the specified time may result in the waiver of rights on appeal.” 28 (Id. at 6, citing Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014).) Plaintiff did not file 1 | any objections and the time to do so has passed. 2 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 3 | Having carefully reviewed the matter, the Court concludes the Plaintiff is not entitled to proceed 4 | in forma pauperis in this matter because Plaintiff has at least three dismissals that qualify as 5 | strikes under Section 1915(g), and he does not satisfy the imminent danger exception. Thus, the 6 | Court ORDERS: 7 1. The Findings and Recommendations filed on January 21, 2025 (Doc. 10) are 8 ADOPTED in full. 9 2. Plaintiff's in forma pauperis status is REVOKED. 10 3. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full 11 the $405.00 filing fee if he wishes to proceed with his action. 12 Plaintiff is advised that failure to pay the required filing fee as ordered will result in 13 the dismissal of this action without prejudice. 14 15 IT IS SO ORDERED. 6 Dated: _ February 27, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28